This is an action filed by plaintiff, Olga Lapir, against her
former employer, defendant Maimonides Medical Center ("MMC"),
and her union, defendant Local 1199, Drug, Hospital and Health
Care Employees Union, RWDSU, AFL-CIO, pursuant to section 301
of the Labor Management Relations Act, 29 U.S.C. § 185(a).
Plaintiff's "hybrid" section 301 complaint alleges that the MMC
breached the collective bargaining agreement between the
hospital and the union by terminating plaintiff's employment
without good cause and that the union's failure to process
plaintiff's grievance through arbitration constitutes a breach
of its duty of fair representation. This matter is now before
the Court on defendants' motions for summary judgment. For the
following reasons, these motions are granted.

The following background information is essentially undisputed
except as noted Plaintiff was employed by MMC as a blood bank
technician from April 1984 until July 1987, when her employment
was terminated as a result of an incident that occurred on July
10, 1987. On that day, Lapir was working an 11 a.m. to 7 p.m.
shift in the main blood bank, where her job was to cross-match
blood samples of patients with donated blood. At some point
between 5 and 7 p.m., a Dr. Stanley Sprecher came to the blood
bank requesting that special blood be set aside for his father,
who was a patient at MMC and who had undergone surgery.
Sprecher, who was not his father's doctor, identified himself
as a member of a blood donor club, Bikur Cholim, who wished to
locate some blood from this group for his father. Sprecher was
told by the blood bank desk clerk or receptionist that she was
unable to grant this request. At Sprecher's insistence, the
clerk referred the matter to the lead technician on duty, a Mr.
Bernard, who also advised Sprecher that his request could not
be granted.

Plaintiff was fired shortly thereafter as a result of this
incident. In an employee warning notice dated July 23, 1987,
the MMC characterized Lapir's decision to allow Sprecher to
accompany her to the computer room, to the computer, and to the
blood bank refrigerator as:

"[a] direct violation of all Blood Bank procedures as
communicated to you and all other Blood Bank personnel at
departmental meetings. Your action jeopardized the
confidentiality of our Blood Bank procedures and therefore
jeopardized our entire Blood Bank program."

The MMC's policies mandate that all blood donations be handled
in a confidential manner. Thus, when blood is collected from
donors, the donors are assigned a numerical code. This code and
the blood type and pH factor are the only identifying marks put
on the blood containers. To further enhance confidentiality,
the MMC uses a different staff member to collect the blood than
the staff member who matches and tests the blood. Blood is not
identified by the donor's name either during storage or when
given to the recipient. According to the MMC, assurances of
confidentiality are essential to elicit candid responses from
donors about their current health and past exposure to disease,
such as AIDS or syphilis.
Moreover, MMC believes that, if it could not assure the
confidentiality of donor names and test results, many current
donors would not donate.

On September 1, 1987, the MMC chapter Hearing and Appeals Board
convened to hear plaintiff's appeal of the union's decision not
to submit the grievance to arbitration. Five MMC delegates,
none of whom were employees from the blood bank, heard
plaintiff's appeal. The board asked Lapir to explain what
happened and to present her side of the story.

David Abels, one of the members of the Board, testified that
the Board had not interviewed the supervisor to determine
whether he knew what Lapir was doing, and to his knowledge, no
one from the union had interviewed Ms. Jackson or Ms. Lombardi.
However, Abels stated that the board does not generally do an
investigation or interview witnesses as part of its
determination. Aside from the employer's termination notice,
the board members rely on what the employee tells them. In
order to hear Lapir's version without risk of prejudice, the
board did not request any written evaluation from either
LaFleur or Willoughby. As Abels explained, "Our sole job is to
get the documents from the administration. . . . We defend
union members. We make every effort to defend the union member.
We make sure that we leave no stone unturned in our proceeding
in interviewing the employee." Abels also stated that Lapir had
never requested that the board interview witnesses or that
Jackman or Lombardi be called.

Abels testified that he did not know of any written regulations
that Lapir violated. However, Abels also stated that "[t]here
are regulations that are not written but, by protocol and
common sense, you should know to follow it. Patient
confidentiality was one of them. We felt that was broken." Both
Abels and Roy Jaffe, another board member, testified that the
board was impressed by the fact that Lapir admitted that she
bypassed her supervisor and that it was clearly improper for
her to undertake to comply with Sprecher's request without
consulting the supervisor. In a decision rendered on September
1, 1987, the MMC Chapter and Appeals Board voted, by 4 to 1, to
deny plaintiff's appeal.

Plaintiff argues that the deposition of Abels demonstrates
personal animosity toward Lapir based on evidence that Abels
made a statement that in his opinion what Lapir had done in
aiding an orthodox Jew obtain blood from the Bikur Cholim
account was "morally wrong and racist to a degree."

After denial by the Hearing and Appeals Board, a union member
has a right to request a review by the division Hearing and
Appeals Board. The union constitution provides that a member
requesting division review of a chapter board decision must
file a written request within 48 hours of the chapter decision.
LaFleur testified that immediately following the Board's
September 1 decision, LaFleur informed Lapir that she could
still appeal to the division at union headquarters and that
LaFleur would help her set up this process. During her
deposition, plaintiff stated that she was told that she could
appeal the decision and of a time frame in which to
appeal.*fn3 In any event, plaintiff never contacted LaFleur
or any other union official but instead decided to retain an
attorney. The first written communication on plaintiff's behalf
was a letter from her counsel on October 6, 1987, more than 35
days after the decision, which asked for reconsideration of the
union's decision not to arbitrate.

Two elements must be proved to establish a breach of the
statutory duty of fair representation. First, the union's
conduct must have been "arbitrary, discriminatory or in bad
faith." Barr v. United Parcel Service, Inc., 868 F.2d 36, 43
(2d Cir.), cert. denied ___ U.S. ___, 110 S.Ct. 499, 107
L.Ed.2d 502 (1989), quoting Vaca v. Sipes, 386 U.S. at 190,
87 S.Ct. at 916. Second, the union's conduct must in fact have
"seriously undermine[d] the arbitral process." Hines v. Anchor
Motor Freight, Inc., 424 U.S. 554, 567, 96 S.Ct. 1048, 1058,
47 L.Ed.2d 231 (1976); Barr, 868 F.2d at 43. It is well
established that while "a union may not arbitrarily ignore a
meritorious grievance or process it in a perfunctory fashion,"
an employee does not have an absolute right to have his or her
grievance taken to arbitration. Vaca v. Sipes, 386 U.S. at
191, 87 S.Ct. at 917. In the present case, plaintiff asserts
that the union's conduct was arbitrary and capricious, and
tainted by personal hostility and bad faith.

Summary judgment may be granted if there is no genuine issue as
to any material fact, and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c). In a duty of
fair representation case, it is not enough to question the
union's wisdom in not proceeding to arbitration. Helmer v.
Briody, 721 F. Supp. 498, 504 (S.D.N.Y. 1989). "In order to
survive [a] summary judgment motion, the plaintiff . . . must
set forth concrete, specific facts from which one can infer a
union's hostility, discrimination, bad faith, dishonesty, or
arbitrary exercise of discretion. . . . Conclusory allegations,
without specifying supporting facts to show a union's lack of
good faith, fail to state a valid claim." Spielman v. Anchor
Motor Freight, Inc., 551 F. Supp. 817, 822 (S.D.N.Y. 1982);
see also Fed.R.Civ.P. 56(e); Schering Corp. v. Home
Insurance Co., 712 F.2d 4, 9 (2d Cir. 1983).

Claim of Arbitrary and Capricious Conduct

Plaintiff asserts that the union failed adequately to
investigate the July 10 incident and failed to develop several
defenses on plaintiff's behalf and that these failures
establish a breach of the duty of fair representation. Several
courts have held that where a union's investigation is so
grossly inadequate as to transcend negligence and poor
judgment, the union has breached its duty. See, e.g., Tenorio,
v. NLRB, 680 F.2d 598 (9th Cir. 1982). Moreover, a union's
handling of an employee's grievance must meet certain minimum
standards of competence and fairness. Lopez v. McLean Trucking
Co., 798 F.2d 611 (2d Cir. 1986). Thus, this circuit has ruled
that, even in the absence of evidence of bad faith, union
decisions made without a rational basis may still be attacked
as arbitrary. Jones v. Trans World Airlines, Inc.,
495 F.2d 790 (2d Cir. 1974).

Plaintiff complains that the union's failure to interview the
donor or computer room clerks constitutes unfair
representation. However, even today, plaintiff is unable to
point to any information possessed by these clerks that would
have justified or mitigated plaintiff's misconduct. No claim is
made that these clerks had authority to alter the hospital's
regulations or that they in fact told plaintiff that she could
proceed as she did.

In Barr, plaintiff similarly asserted that the union had
breached its duty by refusing to present Barr's witnesses at
the step 1 or 2 meetings and by failing to prepare adequately
for the meetings. The court concluded that, while these
decisions might have affected the final outcome of the
arbitration, they did not rise to the level of bad faith and
arbitrariness. As the court explained:

"Tactical errors are insufficient to show a breach of the duty
of fair representation; even negligence on the union's part
does not give rise to a breach. . . . As long as the union acts
in good faith, the courts cannot intercede on behalf of
employees who may be prejudiced by rationally
founded decisions which operate to their particular
disadvantage."

Plaintiff's claim that the decision not to arbitrate her
grievance violated the union's duty likewise fails to raise a
material issue. It is well established that, where, as here,
the union has made an informed decision that a grievance is not
meritorious, plaintiff has no right to arbitration. Vaca v.
Sipes, 386 U.S. at 191, 87 S.Ct. at 917; see also Wozniak v.
U.A.W. Local 897, 842 F.2d 633, 636 (2nd Cir. 1988) ("There is
no arbitrariness in failing to process a bad case."). "A union
has wide discretion to determine in good faith when pursuit of
an individual's grievance would be fruitless." Tolentino v.
Erickson, 525 F. Supp. 812, 816 (E.D.N.Y. 1981); see also
Helmer v. Briody, 721 F. Supp. 498, 504 (S.D.N.Y. 1989). Absent
a showing of arbitrary conduct or bad faith, a court should not
second guess the union's decision not to pursue plaintiff's
grievance to arbitration. Cook v. Pan American World Airways,
supra, 771 F.2d at 645. Plaintiff's position that she decided
to act on Dr. Sprecher's request because the donor room clerk
did so and plaintiff's supervisor failed to stop them presented
the union with the kind of "bad case" that a union may
rationally decline to take to arbitration.

Plaintiff's Claim of Hostility and Bad Faith

Hostility, malice or racial animus toward an employee on the
part of a union may constitute a breach of the duty of fair
representation. Jones v. TWA, 495 F.2d 790 (2d Cir. 1974);
Hammons v. Adams, 783 F.2d 597 (5th Cir. 1986). Plaintiff
asserts that the deposition comments of Mr. Abels, one of the
delegates on the Board of Appeals, demonstrates that he
harbored animosity toward plaintiff. While inferences of
discriminatory intent or malice are generally best left to a
jury, see Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465
(2d Cir. 1989), plaintiff has not raised a material question of
fact with respect to this issue.

Plaintiff first broached this claim of hostility and bad faith
in her answering papers to the current motion. It should also
be noted that plaintiff does not assert any racial or religious
animus motive on the part of Abels, himself an orthodox Jew,
toward Lapir, herself a Jew. Plaintiff alleges hostility based
on Abels' statement at his deposition in this action that her
conduct was "immoral" and "partly racist." However, a comment
of this sort about another person's character is not evidence
of personal animosity unless it is so lacking in a rational
foundation or so uncalled for that no inference is permissible
except that the speaker harbors ill-will towards the person
whose character is being discussed. That is not the situation
here.

For the foregoing reasons, defendants' motions for summary
judgment are granted.*fn5

The Clerk is directed to enter judgment dismissing the
complaint and to mail a copy of the within to all parties.

SO ORDERED.

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